- The Washington Times
Monday, June 27, 2011

In a classic case of 18th century law meeting 21st century technology, the Supreme Court said Monday it will take up a Washington case of whether police covert use of a GPS device to track a suspect constitutes a warrantless search, which is banned under the Bill of Rights.

Law enforcement first began investigating Antoine Jones, a D.C. nightclub owner and drug-dealing suspect, in 2004. The Metropolitan Police Department and an FBI Safe Streets Task Force obtained a warrant to attach the GPS device to Mr. Jones’ Jeep Grand Cherokee.

The warrant specified the device was to be installed within 10 days in the District. But investigators did not install it until 11 days later when the car was parked in Maryland, which forced authorities to argue that a warrant is not needed to install a GPS device.

The D.C. Circuit Court of Appeals overturned Mr. Jones’ conviction and life sentence on the basis that the GPS planting constituted a “search,” thus the evidence acquired for the case had been obtained without a warrant.

However, two other circuit appeals courts had ruled differently, giving the Supreme Court a strong incentive to take the case. In one of the other two cases, a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled the use of a GPS device constitutional on the grounds that it is no different from having officers tail a suspect.

Daniel Prywes, a Washington attorney who wrote a brief in the Jones case for the Electronic Frontier Foundation, said to use a GPS without a warrant is going against the Fourth Amendment.

“If the government can install and monitor a GPS without a warrant, it will really endanger the privacy rights for individuals,” Mr. Prywes said. “Basically, the government could put one of these things on your car without a warrant or any supervision just because an FBI agent or a police officer felt like doing it. … That takes you into the world of ‘Big Brother’ and government monitoring, and it shouldn’t be allowed.”

The Obama administration’s petition, which asked the nine justices to take the case, said the D.C. court’s decision “seriously impedes the government’s use of GPS devices at the beginning stages of an investigation when officers are gathering evidence to establish probable cause and provides no guidance on the circumstances under which officers must obtain a warrant before placing a GPS device on a vehicle.”

Courts have previously ruled that the Fourth Amendment, which protects against unlawful searches and seizures, can only be used in places where someone would have a “reasonable expectation of privacy.” In a pair of cases in the 1980s, the Supreme Court held that the warrantless use of beeper technology was allowed because public roads do not have this expectation.

Catherine Crump, a staff attorney for the American Civil Liberties Union who focuses on privacy, said this case is different because the technology is much more advanced.

The justices are expected to hear arguments and make a decision sometime during their next term, which begins in October.

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